Fultz v. State

Conviction is for the manufacture of intoxicating liquor, punishment having been assessed at confinement in the penitentiary for two years.

Three bills of exception are found in the record. Two of them raise a question as to the sufficiency of the evidence. Officers detected appellant in the operation of a still. When they approached to within about ten feet of appellant he discovered their presence and ran away some distance, only stopping when one of the officers fired his pistol. Appellant claimed upon the trial that he was suffering from rheumatism and pellagra and was making the whiskey for use as medicine; that he had been advised by two physicians, whom he named, that whiskey would relieve his trouble. He omitted, however, to call either of these physicians to testify and in no way accounts for their absence. The conduct of appellant at the time he was detected does not comport with his claim that he was making the whiskey in good faith for medicine. The jury was not required to accept his statement as true. Hawkins v. State, ___ Tex.Crim. Rep. ___, 270 S.W. 1025; Key v. State, ___ Tex.Crim. Rep. ___, 270 S.W. 1027; Horak v. State, ___ Tex.Crim. Rep. ___, 273 S.W. 601; Parson v. State, ___ Tex.Crim. Rep. ___,278 S.W. 44. We entertain no doubt as to the sufficiency of the evidence.

Bill Number Three undertakes to make some complaint of the charge, but it is apparent from the bill that these criticisms were presented for the first time in motion for new trial. Nothing appears in the record to indicate that any objections to the charge were presented in writing as required by Article 658, C. C. P. (1925 Revision). It has been repeatedly held that objections to the charge cannot for the first time be presented in the motion for new trial. (See authorities under Note 89, Art. 658, Vernon's C. C. P., Vol. 2.)

Finding no error in the record, the judgment is affirmed.

Affirmed.